Dr.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW

PUBLIC INTERNATIONAL LAW

PROJECT

“CUSTOMS: AS A SOURCE OF INTERNATIONAL LAW”

SUBMITTED BY: SUBMITTED TO:

KAUMUDI UMRAO MR. MANVENDRA KUMAR TIWARI

ROLL NO:177 ASSISTANT PROFESSOR(LAW)

SEMESTER IV DR. RML NLU

BA.LLB(H) LUCKNOW.
 ACKNOWLEDGEMENT

I am feeling highly elated to work on the topic Customs: As A Source Of International Law
under the guidance of my Public International Law teacher. I am very grateful to him for his
exemplary guidance. I would like to enlighten my readers regarding this topic and I hope I
have tried my best to pave the way for bringing more luminosity to this topic.

I also to thank all of my friends, without whose cooperation this project was not possible.
Apart from all these, I want to give special thanks to the librarian of my university who made
every relevant materials regarding to my topic available to me at the time of my busy
research work and gave me assistance.

KAUMUDI UMRAO
TABLE OF CONTENTS

TABLE OF CASES ................................................................................................................... I

ABBREVIATIONS .................................................................................................................. II

INTERNATIONAL LAW: AN INTRODUCTION .................................................................. 1

SOURCES OF LAW IN BRIEF ................................................................................................ 1

SOURCES OF INTERNATIONAL LAW ................................................................................ 2

CUSTOM: AN INTRODUCTION ............................................................................................ 2

TESTS TO PROVE THE EXISTENCE OF INTERNATIONAL CUSTOMS ..................... 3

TYPES OF CUSTOMS.......................................................................................................... 3

DIFFERENCE BETWEEN CUSTOM AND USAGE ............................................................. 4

STATE PRACTICE ................................................................................................................... 4

DURATION OF PRACTICE .................................................................................................... 5

CONSISTENCY ........................................................................................................................ 6

GENERALITY .......................................................................................................................... 7

OPINIO JURIS .......................................................................................................................... 8

REGIONAL CUSTOMS ......................................................................................................... 10

EXCEPTIONS TO INTERNATIONAL CUSTOM ................................................................ 11

CONCLUSION ........................................................................................................................ 12

BIBLIOGRAPHY .................................................................................................................... 13
TABLE OF CASES
 Anglo-Norwegian Fisheries Case: UK v. Norway [(1951) ICJ Rep. 116]
 Asylum Case: Columbia v. Peru [(1950) ICJ Rep. 266]
 Nicaragua v. United States Case [(1986) ICJ Rep. 14]
 North Sea Continental Shelf Cases: Federal Republic of Germany v. Denmark;
Federal Republic of Germany v. The Netherlands [(1969) ICJ Rep. 3]
 Right of Passage over Indian Territory Case: Portugal v. India [(1960) ICJ Rep. 6]
 Scotia case [14 Wallace 170 (1871)]
 SS Lotus Case: France v. Turkey [(1927) PCIJ Rep. Series A, No. 10, 18]

I
ABBREVIATIONS
Ed. Edition
Ibd. Ibidem
ICJ International Court of Justice
No. Number
p. Page Number
PCIJ Permanent Court of International Justice
Rep. Reporter
UN United Nations
v. Versus

II
INTERNATIONAL LAW: AN INTRODUCTION
In any given society where people live together, conflicts of interests are bound to arise and
there is always the need to do justice. Rules for the regulations of human conduct are,
therefore, present in all societies. They are necessary for the stability and peace because man
would not know how he should behave. As the relations of the individuals in a society are
governed by municipal law, the relations of the states are governed by international law. Like
municipal law, international law also maintains international order and stability in the society
of nations. It is in the interest of states themselves to agree and to regulate their relations with
one another. International law, also called public international law or law of nations, the body
of legal rules, norms, and standards that apply between sovereign states and other entities that
are legally recognized as international actors. Traditionally, Internationally law was known as
the ‘Law of Nations’ (dorit de gens) which meant “The law governing relations between
states”. The term was coined by the English political thinker Jeremy Bentham in his famous
work, An Introduction to the Principles of Morals and Legislation. The term soon became
popular and replaced the traditional title.1
Public International Law is the law of the political system of nation-states and other entities
of the international sphere. It is a system of law, independent of the national systems with.
Since there is no overall legislature or law-creating body in the international political system,
the rules, principles, and processes of international law must be identified through a variety of
sources and mechanisms. This can make international law appear difficult to pin down.
International law refers to those rules and norms which regulate the conduct of states and
other entities which at any time are recognized as being endowed with international
personality, for example international organizations and individuals, in their relations with
each other.2

SOURCES OF LAW IN BRIEF

Rules and norms of any legal system derive authority from their source. The “sources”
articulate what the law is and where it can be found. In a developed municipal system,
sources may be readily identifiable, for example, in India the sources of law include Custom
recognized by law, Precedent and Legislation. But the same does not hold true in the

1
Kanade Jai & Kanade Vishal, Public International Law A Primer3-4(1st Ed., Lexis Nexis 2013).
2
Wallace & Rebecca M.M., International Law 2(7thEd.,Sweet and Maxwell 2013).

1
international arena due to the lack of an international legislature or a legal system where all
the nations are a party. International law is to be found in the common consent of the
international community.3The Article 38 of the Statute of the International Court of Justice
forms a good steeping stone in the understanding of sources of international law.

SOURCES OF INTERNATIONAL LAW

Keeping in mind that the international community neither has a Constitution nor a legislature
the question relating to the sources of International Law is answered by Article 38 of the
Statute of the International Court of Justice which does not expressly mention the word
“source” but spells out how the court is to decide disputes which may come before it for
settlement. It is, however, legally binding on the International Court of Justice because of its
inclusion in the Statute of the court, and is authoritative generally because it reflects state
practice.
The Article 38 reads as under:4
1.The Court, whose function is to decide in accordance with international law such disputes
are submitted to it, shall apply:
a. International conventions, whether general or particular, establishing rules expressly
recognized by the contesting states;
b. International custom, as evidence of a general or particular practice accepted by law;
c. The general principles of law recognized by civilized nations;
d. Subject to provision of Article 59, judicial decisions and the teaching of the most highly
qualified publicists of the various nations, as subsidiary means for the determination of rules
of law.

CUSTOM: AN INTRODUCTION
In any primitive society certain rules of behavior emerge and prescribe what is permitted and
what is not. Such rules develop almost subconsciously within the group and are maintained
by the members of the group by social pressures and with the aid of various other more
tangible implements. They are not, at least in the early stages, written down or codified, and
survive ultimately because of what can be called an aura of historical legitimacy. As the
community develops it will modernize its code of behavior by the creation of legal

3
Wallace & Rebecca M.M., International Law 7(7thEd.,Sweet and Maxwell 2013).
4
Singh Gurdip, International Law 26 (3rd Ed., Eatern Book Company 2015).

2
machinery, such as courts and legislature. Custom, for this is how the original process can be
described, remains and may also continue to evolve.5
The International Court of Justice in Asylum Case: Columbia v. Peru6 described custom as a
constant and uniform usage, accepted by law‟, i.e. those areas of state practice which arise as
a result of a belief by states that they are obliged by law to act in the manner described.7

TESTS TO PROVE THE EXISTENCE OF INTERNATIONAL CUSTOMS8

According to Kopelman -Almost all the doctrine on the subject is limited to the statement that
international custom results from similar and repeated acts by states repeated with the
conscious conviction of the parties that they are acting in conformity with the law.Thus there
would be two factors in the formation of custom:
(1) A material fact consisting of the repetition of the similar acts by states.
(2) A psychological element usually called the opinio juris sive necessitatis the feeling on
the part of states that in acting as they do they are fulfilling a legal obligation.

TYPES OF CUSTOMS9

1. General custom- International customs which are, in general, applicable to all the
states are called the general customs. These customs evolve in matters which concern
all the states in general such as the law of the sea, airspace and outer-space,
diplomatic immunities, the rules of warfare, etc.
2. Local custom- As the name suggest, local customs are customs which are applicable
to smaller group of states. Local customs evolve to address special requirements
(geographical, political, social, or economic) of the states of a particular region. For
instance, local customary rules for asylum developed in Latin America due to peculiar
political environment of the region. Local customs may even be bilateral. The Right
of passage case: Portugal v. India10 is a classic example of bilateral local custom.
3. Instant custom- Ordinarily customs evolve over a period of time by consistent and
uniform repetition of a state practice. However , it has been argued by some jurists

5
Shaw Malcolm N, International Law 72-73( 6thEd., Cambridge University Press 2009).
6
(1950) I.C.J. Rep.266.
7
Kaczorowska Alina, Public International Law 35 (4th Ed., Routledge 2002).
8
Singh Gurdip, International Law 27 (3rd Ed., Eatern Book Company 2015).
9
Kanade Jai & Kanade Vishal, Public International Law A Primer 41(1st Ed., Lexis Nexis 2013).
10
1960) ICJ Rep. 6

3
 that when there is overwhelming state consensus on a particular rule, customs may
evolve instantly only on the basis of opinio juris even in absence state practice.

DIFFERENCE BETWEEN CUSTOM AND USAGE

Custom in its legal sense means something more than mere habit or usage; it is a usage felt by
those who follow it to be an obligatory one. While the customs are binding in nature, the
usages refer to practices which are performed out of habit or courtesy or morality. In other
words, custom is an international habit of action that has received full legal attestation. Usage
represents twilight state of custom.11
Example-In common Indian households there is a practice of removing shoes before entering
a residential household .This practice is an instance of usage because it is performed out of
habit and courtesy. If a particular visitor decides to disobey the usage, he may, at the most
invite the displeasure of the host but the action of violating the practice, in itself, will not
entail any serious consequences for the visitor. The customs on the other hand are backed by
sanctions.

STATE PRACTICE
It is how states behave in practice that forms the basis of customary law, but evidence of what
a state does can be obtained from numerous sources. Obvious examples include
administrative acts, legislation, decisions of courts and activities on the international stage,
for example treaty-making. A state is not a living entity, but consists of governmental
departments and thousands of officials, and state activity is spread throughout a whole range
of national organs. There are the state’s legal officers, legislative institutions, courts,
diplomatic agents and political leaders. Each of these engages in activity which relates to the
international field and therefore one has to examine all such material sources and more in
order to discover evidence of what states do.12
States’ municipal laws may in certain circumstances form the basis of customary rules. In the
Scotia case13 decided by the US Supreme Court in 1871, a British ship had sunk an American
vessel on the high seas. The Court held that British navigational procedures established by an
Act of Parliament formed the basis of the relevant international custom since other states had

11
Kanade Jai & Kanade Vishal, Public International Law A Primer 36 (1st Ed., Lexis Nexis 2013).
12
Shaw Malcolm N, International Law 82 ( 6th Ed., Cambridge University Press 2009).
13
14 Wallace 170 (1871).

4
legislated in virtually identical terms. Accordingly, the American vessel, in not displaying the
correct lights, was at fault.14

The view has also been expressed that mere claims as distinct from actual physical acts
cannot constitute state practice. This is based on the precept that “until it [a state] takes
enforcement action, the claim has little value as a prediction of what the state will actually
do”. But as has been demonstrated this is decidedly a minority view. Claims and conventions
of states in various contexts have been adduced as evidence of state practice and it is logical
that this should be so, though the weight to be attached to such claims, may, of course, vary
according to the circumstances. This approach is clearly the correct one since the process of
claims and counterclaims is one recognized method by which states communicate to each
other their perceptions of the status of international rules and norms. In this sense they
operate in the same way as physical acts. Whether in abstracto or with regard to a particular
situation, they constitute the raw material out of which may be fashioned rules of
international law. It is suggested that the formulation that ‘state practice covers any act or
statements by a state from which views about customary law may be inferred’, is
substantially correct. However, it should be noted that not all elements of practice are equal
in their weight and the value to be given to state conduct will depend upon its nature and
provenance.15

State Practice, for the practice of formation of customary rule, has to meet certain parameters
which are discussed in detail in this project.

DURATION OF PRACTICE
The actual practice engaged in by states constitutes the initial factor to be brought into
account. There are a number of points to be considered concerning the nature of a particular
practice by states, including its duration, consistency, repetition and generality. As far as the
duration is concerned, most countries specify a recognized time-scale for the acceptance of a
practice as a customary rule within their municipal systems. This can vary from “time
immemorial” in the English common law dating back to 1189, to figure from thirty to forty
years from the continent.16

14
Shaw Malcolm N, International Law 83 ( 6th Ed., Cambridge University Press 2009).
15
Ibd.
16
Shaw Malcolm N, International Law 76 ( 6thEd., Cambridge University Press 2009).

5
In international law there is no rigid time element and it will depend upon the circumstances
of the case and the nature of the usage in question. In certain fields, such as air and space law,
the rules have developed quickly; in others, the process is much slower. Duration is thus not
the most important of the components of state practice.17
The jurisprudence of the International Court of Justice indicates that no particular duration is
required for practice to become law provided that the consistency and generality of a practice
are proved. In the North Sea Continental Shelf Cases; Federal Republic of Germany v.
Denmark; Federal Republic of Germany v. The Netherland18it was recognized that there is no
precise length of time during which a practice must exist; simply that it must be followed
long enough to show that the other requirements of a custom are satisfied:
“Although the passage of only a short period of time is not necessarily, or of itself, a bar to
the formation of a new rule of customary law on the basis of what was originally a purely
conventional rule, an indispensable requirement would be that of states whose interests are
specially affected, should have been both extensive and virtually uniform in the sense of the
provision invoked – and should moreover have occurred in such a way to show a general recognition
that a rule of law or legal obligation is involved.”19

CONSISTENCY
The basic rule as regards continuity and repetition was laid down in the Asylum
case 20 decided by the International Court of Justice in 1950. The Court declared that a
customary rule must be “in accordance with a constant and uniform usage practiced by the
States in question”. The case concerned Haya de la Torre, a Peruvian, who was sought by his
government after an unsuccessful revolt. He was granted asylum by Colombia in its embassy
in Lima, but Peru refused to issue a safe conduct to permit Torre to leave the country.
Colombia brought the matter before the International Court of Justice and requested a
decision recognizing that it (Colombia) was competent to define Torre’s offence, as to
whether it was criminal as Peru maintained, or political, in which case asylum and a safe
conduct could be allowed.
The Court, in characterizing the nature of a customary rule, held that it had to constitute the
expression of a right appertaining to one state (Colombia) and a duty incumbent upon another

17
Shaw Malcolm N, International Law 76( 6thEd., Cambridge University Press 2009).
18
(1969) I.C.J. Rep. 3.
19
Kaczorowska Alina, Public International Law 37 (4th Ed., Routledge 2002).
20
(1950) I.C.J. Rep. 266

6
(Peru). However, the Court felt that in the Asylum litigation, state practices had been so
uncertain and contradictory as not to amount to a, constant and uniform usage regarding the
unilateral qualification of the offence in question.The issue involved here dealt with a
regional custom pertaining only to Latin America and it may be argued that the same
approach need not necessarily be followed where a general custom is alleged and that in the
latter instance a lower standard of proof would be upheld.21
In the Asylum Case22The International Court of Justice held:
“The party which relies on custom must prove that this is established in such a manner that it
has become binding on the other party that the rule invoked is in accordance with a constant
and uniform usage, practiced by the States in question, and that this usage is the expression of
a right appertaining to the State granting asylum and a duty incumbent on the territorial State
The facts brought to the knowledge of the Court disclose so much uncertainty and
contradiction, so much fluctuation and discrepancy in the exercise of diplomatic asylum and
in the official views expressed on different occasions; there has been so much inconsistency
in the rapid succession of conventions on asylum, ratified by some states rejected by others,
and the practice has been so much influenced by considerations of political expediency in the
various cases, that it was not possible to discern in all this any constant usage.”23

GENERALITY
The recognition of a particular rule as a rule of international law by a large number of states
raises a presumption that the rule is generally recognized. Such a rule will be binding on
states generally and an individual state may only oppose its application by showing that it has
persistently objected to the rule from the date of first formulation24. The state acceptance of a
particular practice can be implied under following circumstances:
1. State participation- The states manifestly following a particular practice can be
safely said to have accepted that practice.
2. State acquiescence- The states which do not participate in the performance of a
particular practice, and at the same time do not raise any objection either, may be

21
Brownlie Ian, Principles of Public International Law 6(7th Ed., Oxford 2008).
22
(1950) I.C.J Rep.266.
23
Brownlie Ian, Principles of Public International Law 7(7th Ed., Oxford 2008).
24
Kaczorowska Alina, Public International Law 38 (4th Ed., Routledge 2002).

7
 deemed to have acquiesced in the establishment of that practice provided that the state
concerned was aware of the existence of such practice.25
In the Anglo-Norwegian Fisheries Case: UK v. Norway26, for example, the Court rejecting the UK
argument that the ten-mile closing line for bays was a rule of customary law, went on to
observe that the event if it has acquired the status of a rule of customary international law ‘in
any event the rule would appear to be inapplicable as against Norway, in as much as Norway
has always opposed any attempt to apply it to the Norwegian coast.’
However, universality is not required to create a customary rule and it will be sufficient if the
practice has been followed by a small number of states, provided that there is no practice
conflicting with that rule. Therefore, rules of customary law can exist which are not binding
on all states: the practice may be limited to a small group of states, or a state may contract out
of a custom in the process of formulation.

OPINIO JURIS
To assume the status of customary international law the rule in question must be regarded by
states as being binding in law, i.e., that they are under a legal obligation to obey it. In this
way customary rules of law may be distinguished from rules of international comity which
are simply based upon a consistent practice of states not accompanied by any feeling of legal
obligations. The term was given by French writer Francois Geny.27
The Permanent Court of International Justice expressed this point of view when it dealt with
the SS Lotus Case: France v. Turkey28. The issue at hand concerned a collision on the high seas
between the Lotus, a French ship, and the Boz-Kourt , a Turkish ship. Several people aboard
the latter ship were drowned and Turkey alleged negligence by the French officer of the
watch. When the Lotus reached Istanbul, the French officer was arrested on a charge of
manslaughter and the case turned on whether Turkey had jurisdiction to try him. Among the
various arguments adduced, the French maintained that there existed a rule of customary law
to the effect that the flag state of the accused (France) had exclusive jurisdiction in such cases
and that accordingly the national state of the victim (Turkey) was barred from trying him. To
justify this, France referred to the absence of previous criminal prosecutions by such states in

25
Kanade Jai & Kanade Vishal, Public International Law A Primer 38-39 (1st Ed., Lexis Nexis 2013).
26
(1951) I.C.J. Rep.116.
27
Kaczorowska Alina, Public International Law 39 (4th Ed., Routledge 2002).
28
(1927) P.C.I.J. Rep. Series A, No. 10, 18.

8
similar situations and from this deduced tacit consent in the practice which therefore became
a legal custom.29
The Court rejected this and declared that even if such a practice of abstention from instituting
criminal proceedings could be proved in fact, it would not amount to a custom. It held that
“only if such abstention were based on their [the states] being conscious of a duty to abstain
would it be possible to speak of an international custom”. Thus the essential ingredient of
obligation was lacking and the practice remained a practice, nothing more. In the North Sea
Continental Shelf Cases30 the International Court of Justice required that opinio juris be strictly
provided. Here in the general process of delimiting the continental shelf of the North Sea in
pursuance of oil and gas exploration, lines were drawn dividing the whole area into national
spheres. However, West Germany could not agree with either Holland or Denmark over the
respective boundary lines and the matter came before the International Court of Justice. The
Court opined:
“Not only must the acts concerned amount to a settled practice, but they must also be such, or
be carried out in such a way, as to be evidence of a belief that this practice is rendered
obligatory by the existence of a rule of law requiring it. The need for such a belief,i.e., the
existence of a subjective element, is implicit in the very notion of the opinion juris sive
necessitatis. The states concerned must therefore feel that they are conforming to what amounts
to a legal obligation. The frequency or even habitual character of the acts is not in itself
enough. There are many international acts, eg. In the field of ceremonial and protocol which
are performed almost invariably but which are motivated only by considerations of courtesy,
convenience or tradition, and not by any sense of legal duty.”31
The approach of the North Sea Continental Shelf Cases32 was maintained by the Court in the
Nicaragua case33. The Court noted that:
“for a new customary rule to be formed, not only must the acts concerned amount to a settled
practice, but they must be accompanied by the opinio juris sive necessitatis . Either the States
taking such action or other States in a position to react to it must have behaved so that their
conduct is evidence of a belief that this practice is rendered obligatory by the existence of a
rule of law requiring it. The need for such a belief, i.e. the existence of a subjective element,
is implicit in the very notion of the opinio juris sive necessitatis.”

29
Kaczorowska Alina, Public International Law 39-40 (4th Ed., Routledge 2002).
30
(1969) I.C.J. Rep. 3.
31
Kaczorowska Alina, Public International Law 40(4th Ed., Routledge 2002).
32
(1969) I.C.J. Rep. 3.
33
(1986) I.C.J. Rep. 14.

9
Given the difficulties in establishing opinio juris it seems likely that the Court will place
increasing emphasis on determining the extent of the practice and will be ready to infer
opinio juris from those examples of practice that confirm that the actions in issue are not
merely casual acts or acts dictated by international comity.

REGIONAL CUSTOMS
Custom may be either general or regional. General customs are those customary rules binding
upon the international community as a whole. Local or regional customs are those applicable
to a group of states or just two states in their relations inter se. Such an approach may be seen as
part of the need for “respect for regional legal traditions”.34
In the Asylum Case 35 , discussed earlier, the International Court of Justice discussed the
Colombian claim of a regional or local custom peculiar to the Latin American states, which
would validate its position over the granting of asylum. The Court declared that the “party
which relies on a custom of this kind must prove that this custom is established in such a
manner that it has become binding on the other party”. It found that such a custom could not
be proved because of uncertain and contradictory evidence.
In such cases, the standard of proof required, especially as regards the obligation accepted by
the party against whom the local custom is maintained, is higher than in cases where an
ordinary or general custom is alleged.36
In the Right of Passage over Indian Territory Case: Portugal v. India37 the International Court of
Justice accepted the argument that a rule of regional custom existed between India and
Portugal. The Court said:
“With regard to Portugal’s claim of right of passage as formulated by it on the basis of local
custom, it is observed on behalf of India that no local custom could be established between
only two states. It is difficult to see why the number of states between which a local custom
may be established on the basis of long practice must necessarily be larger than two. The
Court sees no reason why long continued practice between two states accepted by them as
regulating their relations should not form the basis of mutual rights and obligations between
two states.” 38

34
Kaczorowska Alina, Public International Law 42 (4th Ed., Routledge 2002).
35
(1950) I.C.J. Rep. 226.
36
Shaw Malcolm N, International Law 92 ( 6th Ed., Cambridge University Press 2009).
37
(1960) I.C.J. Rep. 6.
38
Shaw Malcolm N, International Law 92 ( 6th Ed., Cambridge University Press 2009).

10
Such local customs therefore depend upon a particular activity by one state being accepted by
the other state (or states) as an expression of a legal obligation or right. While in the case of a
general customary rule the process of consensus is at work so that a majority or a substantial
minority of interested states can be sufficient to create a new custom, a local custom needs
the positive acceptance of both (or all) parties to the rule. This is because local customs are an
exception to the general nature of customary law, which involves a fairly flexible approach to
law-making by all states, and instead constitutes a reminder of the former theory of
consent hereby states are bound only by what they assent to.39

EXCEPTIONS TO INTERNATIONAL CUSTOM40

General rule is that once an international custom is established, it is binding on all the states if
the international community. However, there are two possible exceptions to this principle:
1. Persistent objector- Formation of customs requires general support of the states
which can be derived from actual state participation and acquiescence. Thus, if a
particular state raises an objection to some customary practice right from the initial
stages of its formation, and continues to do so persistently even after the formation of
such custom, that state is called persistent objector, and it may be said that it is not
bound by the custom in question.
2. Subsequent objector- If a state bound by a particular customary rule subsequently
objects to that rule or deviates from the customary practice and other states acquiesce
in such objection or deviation, such state may be said to have contracted out of the
custom in question. Such state is referred to as the subsequent objector and it may no
longer be bound by the customary rule.
The principles of booth the exceptions were involved in the Anglo-Norwegian Fisheries
Case: UK v. Norway.41In this case, one of the Norwegian arguments was that it was not
bound by a particular rule of international law because it had consistently and unequivocally
manifested refusal to accept that rule. In other words Norway claimed that it was a persistent
objector and thus, not bound by the particular rule. The UK did not dispute the validity of this
principle, but on facts, denied that Norway had manifested any such denial to qualify as a
persistent objector. In the facts of the case, the ICJ concluded that even if Norway was to be
held initially bound by the alleged rule, it had subsequently departed from that rule a long

39
Shaw Malcolm N, International Law 93 ( 6th Ed., Cambridge University Press 2009).
40
Kanade Jai & Kanade Vishal, Public International Law A Primer 40 (1st Ed., Lexis Nexis 2013).
41
(1951) I.C.J. Rep.116.

11
time ago and the other states had acquiesced in such deviation. Thus, Norway was not bound
by the customary rule in question. In short, the ICJ affirmed the principle of subsequent
objector.42

CONCLUSION
Custom is regarded as an authentic expression of needs and values of the community at any
given time. International custom means a course of conduct undertaken by states over a
period of time with a conviction that they are legally bound to follow that particular course of
conduct. The duration of a particular international states’ practice is what qualifies it into
customary international law. Customary law systems generally suppose that the rule that they
apply are long-established. Unlike sources of law in the municipal or domestic legal systems,
sources of International law cannot be ascertained with the same degree of specificity, clarity,
and precision. Today, in the context of our complex and highly sophisticated international
legal order, customs, practices, and usages of states are constitutive of law for the purposes of
global governance and regulation.
There are a few limitations of customs as a source of international law like formation of
custom is normally a slow and tedious process,extracting a rule of customary law from
multitudinous state practice is a complicated process,it is uncertain in a way that until a rule
of customary law is authoritatively expounded by a judicial tribunal or some such forum;the
precise content of a customary rule remains uncertain,it is difficult to prove the essential
elements especially the mental element required for formulation of a rule of customary
law,Customary international law is often somewhat vague and open to conflicting
interpretations.If the perceived interests of certain states or groups of states change,so will
their attitude towards customary international law,and a particular rule may then be
challenged.

42
Kanade Jai & Kanade Vishal, Public International Law A Primer 40-41 (1st Ed., Lexis Nexis 2013).

12
BIBLIOGRAPHY
 Brownlie Ian, Principles of Public International Law, Oxford University Press Inc.,7th
Ed.,2008.
 Kaczorowska, Alina, Public International Law, Routledge, 4th Ed.,2010.
 Shaw Malcolm N., International Law, 6th Ed., Cambridge University Press,
Cambridge,2009.
 Wallace, Rebecca MM., International Law, 7th Ed., Sweet and Maxwell,2013.
 Singh Gurdip, International Law, 3rd Ed., Eastern Book Company,2015.
 Kanade Jai and Kanade Vishal, Public International Law A Primer,1st Ed., Lexis
Nexis,2013.

13